This
appeal, by special leave arises from the order of the H.P. Administrative
Tribunal, made on October
28, 1996 in O.A. No.
788/95.

The
determination of inter-se seniority of the direct recruits is the only question
in this case. The appellants and the respondents came to be selected by direct
recruitment against vacancies in the permanent posts of Excise and Taxation
Inspectors in the H.P. Excise and Taxation Department (Inspectorate staff,
Class III) Service.

The
question relates to the interpretation of Rule 11 of the (Seniority) Service
Rules read with Rule 4 (Examination ) of the Rules. It is: whether examination
has to be passed within two years from the date of appointment and joins the
duty, indisputably under Rule 11(3) of the Rules, on confirmation on the Expiry
of probation, the seniority relates back to the date of appointment. The
situation where a candidate does not pass the examination within two years but
within the extended period of four years is dealt with under proviso to sub
rule (3) of Rule 11 which reads thus:

"11(3)
On the completion of the period of probation a person and passing the
prescribed examination the appointment authority may (a) if his work and
conduct is found satisfactory.

(i)
confirm such person from the date of his appointment if appointed against a permanent
vacancy; or (ii) confirm such person from the date from which a permanent
vacancy occurs; if appointed against a temporary vacancy ; or (iii) declare
that he has completed his probation vacancy; or (b) if his work or conduct has
not been, in its opinion, satisfactory and in the case of non-passing of
prescribed departmental examination.

(i)
dispense with his services, if appointed by direct appointment or if appointed
otherwise revert him to his former post, or deal within such other manner as
the terms and conditions of his previous appointment; permit; or (ii) extend
his period of probation and thereafter, pass such orders as it could have
passed on the expiry of the first period of probation.

This
shall also apply mutatis mutandis to the departmental examinations;

Provided
that the total period of probation and the time allowed for passing the
departmental examinations, including extension, if any shall not exceed four
years." It appears that series of orders came to be passed by the
administrative Tribunal and one arising therefrom was decided by this court. In
the first round of litigation in which one Sud was the applicant, the Tribunal
had held that the seniority would be coferred on those who passed within two
years from the date of joining the service and those who passed subsequently
would rank juniors to them. In the case of Mohan lal & Ors., in the second
set of litigation, it was held that those who passed the test within two years,
would get seniority from the date of joining the post and those who passed
within the extended period of four years, would rank inter-se seniority from
the date of the passing of the test. In case of those who did not pass the
examinations within the extended period of four years, it would be open to the
state Government to have their services terminated or to take such action as
would be open to them. The first litigation had reached this Court. This Court
in Ishwari Kumar & Ors. vs. state of H.P. [CA No. 4258/92] decided on March
24, 1994 had held that such of the candidates who passed the examinations
within two years and were confirmed after passing the departmental tests, would
get seniority from the respective dates of their joining the post and the date
of passing the departmental test relates back to the date of the appointment.
But those who passed the examination after the said two years, would get
seniority from the date of passing and would rank junior to those who passed
the examination within two years. In this appeal, the third set of litigation,
the question arises; whether the third set of litigation, the question arises ;
whether the period of passing the test within two years by taking four chances
is mandatory or not? In that behalf, it is necessary to read Rule 11 of the
Rules which reads as under:

"11.(1)
Persons appointed to the service shall remain on probation for a period of two
years.

Provided
that- (a) the incumbents shall within two years of the appointment, pass the
departmental examinations prescribed by the Government from time to time and;

(b) the
Government may exempt in exceptional cases any person from passing any or all
such departmental examinations.

Provided
further that - (a) any period, after such appointment, spent on deputation on a
corresponding or higher post shall count towards the period of probation.

(b) any
period of officiating appointment to the Service shall be reckoned as period
spent on probation, but no person who has officiated shall, on completion of
the prescribed period of probation, be entitled to be confirmed unless he is
appointed against a permanent post/vacancy.

(2)
If, in the opinion of the appointing authority, the work or conduct of a person
during the period of probation is not satisfactory or conduct of a person
during the period of probation is not satisfactory or he fails to pass the
proscribed departmental examination within two years of his appointment, it
may- (a) if such person is recruited by direct appointment, dispense with his
services and (b) if such person is recruited otherwise- (i) revert him to his
former post;

or
(ii) deal with him in such other manner as the terms and conditions of the
previous appointment permit.

(3) on
the completion of the period of probation a person and passing the prescribed
examination the appointment authority may- (a) if his work and conduct is found
satisfactory- (i) confirm such person from the date of his appointment if
appointed against a permanent vacancy; or (ii) confirm such person from the
date from which a permanent vacancy occurs; if appointed against a temporary
vacancy; or (iii) declare that he has completed his probation satisfactory if
there is no permanent vacancy; or (b) if his work or conduct has not been, in
its opinion, satisfactory and in the case of non passing of prescribed
departmental examination (i) dispense with his services, if appointed by direct
appointment or if appointed otherwise revert him to his former post, or deal
within such other manner as the terms and conditions of his previous
appointment; permit; or (ii) extend his period of probation and thereafter,
pass such orders as it could have passed on the expiry of the first period of
probation.

This
shall also apply mutatis mutandis to the departmental examinations;

Provided
that the total period of probation and the time allowed for passing the
departmental examinations, including extension, if any shall not exceed four
years." A reading of this Rule would clearly indicate that a person
appointed to a service shall remain on probation for a period of two years. The
appointment letters issued to the parties indicate the conditions. One of the
conditions, namely condition No.(vi) envisaged as under:

(iv)
He shall have to pass the departmental examination in respect of both the
Excise & Taxation within two years of his joining the duty failing which
his services are liable to termination." Therefore, it specifies that a
candidate appointed to the post on probation shall have to pass the
departmental examination in respect of both the Excise and Taxation within two
years of his joining the duty.

Rule 4
of the Rules provide as under:

"4.
Conduct of Examinations:

(i)
The Departmental Examination for the Excise and Taxation Inspectors of the
Excise and Taxation Department, Himachal Pradesh shall be held twice a year
about the third week of the April and first week of November, or on such other
dates as are notified by the Excise and Taxation Commissioner. The dates and
the place of the examination will be notified before hand in the himachal
Pradesh Rajpatra.

(ii)
The deputy Excise and Taxation Commissioner, ( North and South Zones) shall
forward to Excise and Taxation Commissioner, Himachal Pradesh before 15th
January and 15th August, each year or within one month after the publication of
the results of the last examination whichever is later the names of the
officers who intend to sit for the examination together with the subjects in
which they wish to be examined.

(iii)
The examination will be conducted by the HP Institute of Public Administration,
Fair Lawns, Shimla." A reading of this rule relating to conduct of
examination would indicate that the Government shall hold the examinations
twice a year between 3rd week of April and 1st week of November, or on such
other dates as are notified by the Excise and Taxation. Commissioner. The
examination so conducted by the Institute of Public
Administration, Shimla
shall be in the manner prescribed in paragraph (ii) of Rule 4 of the Rules. It
is, therefore, clear that the Government is required to conduct the
examinations twice a year and the candidates are required to pass the
examinations within two years from the date of joining the post on probation.
The Rule does not give four chances to every candidate. They shall pass the
departmental examination within two years. On successful completion of probation
and declaration thereof, his seniority would relate back to the date of
appointment.

We are
not concerned with the action to be taken by the Government for such of those
candidates who did not pas the examinations within the prescribed two years period
or extended period of four years of the probation. We are concerned with a case
of two sets of persons, i.e. those who passed the examinations within two years
and another set of officers who sat for the examination within two years but
passed the examination beyond two years. It is a case where the respondents
themselves sought for the relief in the OA that their seniority would be
reckoned themselves made that their seniority should be declared from the date
of their passing the examination and in the light of the conditions of service
and operation of the Rule , we hold that their seniority will be reckoned from
the date of their passing the examination.

The proforma
respondents sought to contend that they are governed by the Rules operating in
the years 1963 and 1964 and that these Rules have no application to them. We
need not express any opinion on that . We are informed that the matter is
pending in the Tribunal. It would be for the Tribunal to consider their claims
in accordance with law.